Appeal from the Circuit Court of Winnebago County; the Hon.
John W. Nielsen, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 6, 1986.
Defendant, John Lyle Hall, was charged with the offense of obscenity as a result of the sale of an allegedly obscene magazine. (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(a)(1).) Defendant was found guilty by a jury and subsequently received a sentence of 140 days' imprisonment and a fine of $1,000. Defendant filed a timely notice of appeal.
In this court defendant contends: (1) that, where the defendant introduced public opinion evidence regarding community standards of the State of Illinois, the State was compelled to do more to sustain a conviction than introduce the allegedly obscene magazine into evidence; (2) that the trial court erred in refusing to tender defendant's instruction No. 5, which related to evidence of community standards; (3) that the trial court erred in permitting the State to cross-examine the defendant's expert psychiatric witness abut the prurient appeal of the allegedly obscene magazine; (4) that the trial court abused its discretion in imposing a sentence of 140 days' incarceration on defendant; and (5) that the Illinois obscenity statute is unconstitutional.
On the evening of June 21, 1984, Brian Harrison, who was employed as a deputy by the Winnebago County sheriff's department, went to the Sunset Outdoor Theater. After watching a movie, Harrison went to the concession stand at the theater. Within the concession stand was an area containing a counter displaying marital aid devices. On a three-tier bookshelf were displayed sexually explicit magazines. Harrison entered the book area where defendant, John Lyle Hall, was sitting at a counter, selected a magazine, entitled "Tricking," which depicted homosexual activity on its covers, approached defendant at the cash register, and placed the magazine face down on the counter. Defendant picked up the magazine, turned it over to get the price, rang the price up on the cash register, and then accepted payment for the magazine. Harrison took the magazine and left.
Lori Seagren, a crime scene technician, testified that on June 22, 1984, she went to the Sunset Outdoor Theater to take photographs of the bookshelf in the concession stand. Seagren stated that the magazines on the bookshelf were sexually explicit.
Defendant's first witness was Carl Hamann, a physician specializing in psychiatry. Hamann testified as to his experience in dealing with individuals who had sexually related problems and his professional understanding of "sexually explicit materials," which he defined as the verbal expression or pictorial expression of explicit behavior. The witness defined prurient interests as an "abnormal interest in sex, excreta, and all the things related to sex." The witness stated that he had looked through the magazine, "Tricking," and that it depicted all positions and attempted contacts between homosexuals. Hamann testified that the attempted positions fell within the range of sexual conduct which he considered normal. In the witness' opinion the magazine, taken as a whole, did not appeal to the prurient interests of an average adult.
On cross-examination Hamann admitted that he had not read the storyline of the magazine but had merely looked at the pictures for about three minutes. The witness also related that he had never conducted any type of research or talked with individuals regarding sexually explicit magazines, such as the one in question, and that his conclusion that the magazine, "Tricking," did not appeal to an individual's prurient interest was his own opinion. The prosecutor showed Hamann various pictures in "Tricking," asking if they depicted a normal interest in sex. Defense counsel objected, arguing that the magazine must be taken as a whole in determining if it is obscene. The trial court overruled the objections, pointing out that the whole is the sum of the parts. Hamann then looked through the magazine, page by page, stating that none of the pictures was more likely to attract a prurient interest than any of the others. When asked if sexually explicit materials appeal to the prurient interests of individuals, the witness opined that they might sometimes "but not by and large."
On redirect, the witness was asked to read the story accompanying the pictures in the magazine, "Tricking." After reading the magazine, the witness stated that the words did not change his prior opinion regarding the appeal of the magazine to the average adult. On recross, Hamann was asked if it was his testimony that "Tricking" would appeal to a normal interest in sex. Hamann replied that the magazine would have little appeal to the average person but a greater appeal to homosexual individuals.
Defendant's next witness, John Breen, a legal investigator, testified that he had been employed by defense counsel to visit adult bookstores in Cook, De Kalb, McLean, Sangamon, and Peoria counties, to determine the availability and acceptability of sexually explicit materials in adult bookstores in Illinois. The witness described the exterior and interior of each bookstore he visited and the clientele he encountered in each, as well as the magazines he purchased in the stores. Breen stated that the materials purchased by him accurately contained pictorial portrayals of the sexual activity observed in publications and other materials available in each bookstore visited, including heterosexual and homosexual intercourse and anal and oral intercourse. Breen also testified that he had reviewed the magazine, "Tricking," and that, in his opinion, it was not as sexually explicit as the magazines he had purchased at the various bookstores. On cross-examination, Breen admitted that he had not read the storyline in "Tricking." He also related that defense counsel had instructed him to purchase magazines depicting heterosexual, homosexual and bisexual conduct.
Defendant's final witness was Roderick Bell, a social scientist, who testified regarding a public opinion poll (survey) he had conducted of 800 adults in Illinois to determine community standards in obscenity cases. For this survey, Bell used a questionnaire designed to sample and report the attitude of adults living in Illinois toward the depiction of sexually explicit material. Bell made a comparison of the 1983 survey with others he conducted in 1978 and 1980, involving virtually the same questionnaire, pointing out that the results of the surveys showed that a larger percentage of those surveyed in 1983 than in 1980 and 1978 found sexually explicit materials acceptable for the average adult.
On cross-examination, Bell stated that although one of the questions on the questionnaire concerned changing standards toward sexually explicit materials, the people surveyed were not questioned regarding what they believed to be the current standard. Additionally, the manner in which an individual answered certain questions would depend on that person's idea of what constituted sexually explicit materials as well as his life experiences with such materials.
At the jury instruction conference the State objected to defendant's instruction No. 5 relating to proof of contemporary community standards. The bases for the State's objections were that it was a non-IPI instruction, that it called undue attention to community standards' evidence, and that it was repetitive of defendant's instruction No. 3. The court denied the instruction, commenting that it singled out one piece of evidence (the survey) to the exclusion of all other evidence.
The jury found defendant guilty of obscenity. Defendant filed a motion for judgment notwithstanding the verdict, or, alternatively, for a new trial which was denied.
At the sentencing hearing the State presented no evidence in aggravation. Catherine Hall, defendant's wife, testified in defendant's behalf, relating that the couple had two children and were expecting another child; that defendant's parents lived with the couple; that neither she nor her husband were presently employed; that the only income the couple had was unemployment insurance; and that her husband had never been convicted of any other crime. Defendant presented no other evidence in mitigation. The State sought the maximum sentence allowed under the obscenity statute, 364 days' imprisonment and a fine of $1,000. Since defendant was the manager of the bookstore at the Sunset Outdoor Theater rather than just a clerk, the State specifically asked the court to consider a sentence which would deter others from committing the same offense as defendant. Defense counsel stressed that defendant was a first-time offender, ...